On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-05-0945.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2009
Before Judges Rodríguez and Payne.
Defendant appeals from her conviction for two counts of third-degree*fn1 aggravated assault, N.J.S.A. 2C:12-1b(7); two counts of second-degree child endangerment, N.J.S.A. 2C:24-4a; and the denial of her post-trial application to the Pretrial Intervention Program (PTI). We affirm.
Following a jury trial, but before sentencing, defendant moved to allow the release of her psychiatric and psychological records for preparation of the presentence report. Defense counsel then requested that the State consider defendant's entry into PTI in light of the psychological records. Defense counsel argued that compelling reasons clearly existed to support defendant's admission to PTI. The State refused to consent to allow defendant to apply to PTI because she had already been found guilty by the jury. The judge imposed concurrent terms of four years on the aggravated assault and seven years on the endangering conviction.
The charges stem from the abuse by defendant and her boyfriend, William, of her son S.F., who was born with hydrocephalus; and their five-week-old daughter A.D., who was severely undernourished and had sustained unexplained fractures of the left humerus, left tibia and two ribs.
At the time the abuse was discovered, defendant, William and the two children resided with defendant's mother, Jill. Defendant's younger sister, Molly, resided with their father, Robert, but spent weekends at her mother's home.
On June 9, 2005, Robert was working as an announcer at the Keyport firemen's fair when he ran into Jill, defendant, William, and the two children. Robert noticed immediately that A.D. did not appear to be the same baby she was when he first saw her in the hospital after her birth. Robert testified that she looked frail. Robert also noticed the awkward way A.D. was holding one of her limbs. Robert asked when A.D.'s next doctor's appointment was scheduled. Defendant replied that it was in a couple of weeks. He told defendant to take A.D. to the doctor the following day because she did not look healthy. According to Robert, he had to go to his ex-wife's residence on a few occasions to speak with William because William drank and was abusive to defendant and the children.
Margaret, Robert's second wife, testified that when she saw A.D. at the fair she "was very tiny and her head was large and her eyes were very sunken. And she was just blank . . . . Her coloring was off. She just didn't look healthy." In addition, A.D. looked very messy and dirty.
Margaret testified to an occurrence involving S.F. When she took off a belt, replacing it with another, she heard a noise and looked over and saw S.F. shaking in a fetal position.
Defendant's younger sister, Molly, testified that prior to William coming into defendant's life, defendant took good care of S.F. Defendant only began to get distant with S.F. once William came into the picture. Molly testified that one time when she came home, A.D. was screaming and crying alone in Jill's bed. William was the only one home at the time. He was in defendant's room playing on the computer. Later, Molly told defendant that William left A.D. unattended. Defendant, however, did not say anything in response. Molly witnessed William physically grab S.F. and roughly lay him down to make him go to sleep and take a bottle. William would also drag S.F. around. Molly would see marks on S.F.'s arms and legs and really tight handprints that would turn into bruises. Molly, having been threatened by William, did not tell defendant or her mother or father because she was scared of William. Molly also testified that William abused defendant.
The day after the meeting at the fair, defendant brought five-week-old A.D. to the VNA Keyport Primary Care Center (the Center), a licensed medical facility available twenty-four hours a day and seven days a week. Robert White, a nurse practitioner working for the Center, testified that upon seeing A.D. it was obvious that she was underweight or had lost weight. A bottle was provided for A.D. at the Center, which she took very well. According to White, free formula would have been provided to defendant if she had not been able to afford it.
In addition to A.D.'s weight loss, there was also concern over her arm, as she was holding the arm against her chest with the wrist angled down. Defendant admitted to White that the injury had occurred two weeks prior but upon speaking with an aunt she decided it was not a concern. It was also noted that the baby wasn't wearing clean clothing and her hygiene was poor. White's diagnosis was a failure to ...